A plea to Congress not to ‘fix’ a music market that isn’t broken

Dear Congress,

By now, maybe you’ve read the “Dear Congress” letter that many music companies and individual artists have signed asking you to “fix” the Digital Millennium Copyright Act—a law Congress negotiated in 1998 in response to widespread fears that the Internet was going to kill the music industry because of digital redistribution.

As a lawyer who has been working on internet and copyright law for more than 25 years, I’m always a little surprised by these letters, not least because I have bought so much digital music from these companies and these artists over the last couple of decades. I know many songs by Pink and Pharrell, by Elvis Costello and Chicago and Randy Newman, by Sir Elton John and Carole King, by Lionel Richie and Mark Ronson – and I know them by heart because I play them over and over again on my iPhone or my computer. Or because I hear them in restaurants and sing along and happily support the restaurants that pay their fees to the American Society of Composers (ASCAP) or Broadcast Music Inc. (BMI) or the Society of European Stage Authors and Composers (SESAC) or the individual music companies.

I love the music of Lady Gaga and Sir Paul McCartney and Gwen Stefani, and I want to see them get paid, and I happily pay money to pay them.

But one of the reasons I’m able to sing along so quickly with the music of Taylor Swift or Ronnie Spector is that I’ve been able to hear them through the great array of digital technologies and digital choices that the new tools and devices, and that companies like Apple and Google and Microsoft, have brought to me and millions of other consumers. It’s precisely because those companies, like the web and the internet itself, are protected by the balances that the Digital Millennium Copyright Act struck so well back in 1998.

I don’t believe that Lionel Richie or Aaron Neville or Sheryl Crow really believe I’ve been stealing their music when I hear it for the first time on the internet, maybe through a friend’s iPhone or another friend’s subscription to Spotify or Pandora. I believe these great artists and performers, if they could see me discovering their music for the first time on these digital platforms, would be thankful for the balances struck not so long ago in the DMCA. They would be able to tell by the expression on my face that they had found their audience, and that they had won me over as a (paying) fan forever.

This world that has enabled me to find all this new music—and I’m not the youngest music fan around, since I’m set to turn 60 this year—is a world that Congress helped create when legislators decided carefully and wisely to put a framework in place that both allows music to be heard digitally nearly everywhere and that also makes it easy for artists to require—sometimes with just a letter of request – that infringing music be removed.

I will be frank here and say that, while I am a fan of the music companies that also signed this letter (together with so many of the artists that I know and love), I am reminded that these debates never end. The minute you change copyright law even one little bit to give them more ways to extract money from computer companies and phone companies and the people who make my earbuds, they already start planning for what they want to take next year, in the next Congress and the next legislative session, in response to whatever other technologies have developed by then to give me more choices to pay for the music I love.

Dear members of Congress, all I ask is that you not just roll over this time. I think you got the Digital Millennium Copyright Act mostly right back in 1998. When I look at the successful musicians on this latest letter, my own thought is that I am so happy for their success and for the success of all the new musicians who’ve gotten started since 1998. And so my request to you, members of Congress, is to please don’t assume the music marketplace is broken. For fans like me, it’s the fulfillment of the world of music that I want to listen to and be a part of. And if this marketplace ain’t broke, please, please, please don’t yield to the latest (yet weakest) calls to try to fix it.